George Brock: Public interest must guide law for digital age

Part of the mess was about definitions. In a digital age in which anyone can publish and anyone call themselves a journalist, Ministers tied themselves in knots trying to produce a legal definition of a “relevant publisher” 
large enough to come under new regulations. They still have not solved the puzzles they created.

The issue of defining whether people who do journalism are journalists was never simple; in the digital age, it’s even harder.

In all protest and debate over the Guardian’s recent disclosures of widespread personal communications surveillance and the reactions of the British and American authorities, the theme has kept recurring in the arguments over the nine-hour detention of David Miranda at Heathrow airport. Is Miranda a journalist?

Miranda lives in Brazil with his partner Glen Greenwald, who has been disclosing the material leaked by Edward Snowden about the scope of interception by the American 
and British authorities. Miranda was moving (presumably leaked) material between Greenwald and a film-maker in Berlin.

So hardly a journalist and more of a bag-man, on his own account. Miranda claimed, a little implausibly, to have no idea what was on the memory sticks he was couriering. But his air fare was being paid by the Guardian and his journey was presumably important to possible future disclosures of possible importance in the issue of the accountability of covert agencies like the American National Security Agency.

Why does it matter if Miranda counts as a journalist or not? Because of well-intentioned but muddled law.

Controversial journalism happens at the junction of two colliding rights: the right of a state to keep things secret in order to keep its citizens safe and the right of the news media to disclose matters which inform public discussion. One way of managing this clash is to give journalists special legal status which protects them from the full force of the law which might come down on ordinary citizens. Special legal treatment is reserved for “journalists” because they dislodge facts which society needs to know. Some US states have “shield laws” which do precisely this in exempting reporters from obligations to identify sources.

So at least in jurisdictions influenced by American law and the First Amendment to the Constitution (which bars the government from interfering with “the Press”), being classified as a journalist may make people safer. Julian Assange, founder of Wikileaks, was openly contemptuous of mainstream journalists until he was facing the possible risk of criminal trial in the US. At that point, he began describing himself as a journalist and dialled down his scorn for the established news media.

I’ve always been uncomfortable with formal protections for individuals which turn on a status which is claimed (or assigned by law or a court). Journalism is, and always has been, a messy, porous business ill-suited to being roped off as a professional caste.

It always was: important roles in great disclosures have been played by whistleblowers, brave sources, bag-carriers and people who happened to be in the right place at the right time. If that’s true for the past, it’s surely true in spades now.

This month I’m publishing a book which looks at what is happening to the idea (and business) of journalism in the digital age. Drawing a clear line around what is journalism and who is a journalist is now harder than ever. The British police seem to have noticed something that not all journalists have grasped.

Whistleblowing leaks of large quantities of data are going to be a feature of the era in which governments and others collect and store that data. To get this information into the public domain, some secrecy, expertise and guile may be required. People who don’t work as reporters or editors may be involved – as David Miranda appears to have been.

Laws to protect disclosure should turn not on the status of an individual but on the value of the disclosure. That is the idea which underlies the “public interest” principle. Is there – the law should ask – a public value in the disclosure which can override other considerations?

The status of the person in trouble with the law is the wrong test. That’s why the Government’s attempts to encourage or enact new rules about journalism in the wake of the Leveson Inquiry ran aground on just the same quicksands of definition.

British lawyers tend to dislike “public interest” because it is too slippery and vague to be useful in court. But it’s a much better idea than trying to work out, in today’s digitally-blurred world, who’s a journalist and who’s not.

*George Brock is Professor and Head of Journalism at City University London and the author of Out of Print: Newspaper, Journalism and the Business of News in the Digital Age published by Kogan Page.